Medicus April 2016

F A M I L Y L AW

adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property. It appears their Honours had cleverly combined the traditional and post Stanford approaches to achieve what they considered was the right outcome. It was effectively an adjustment by way of a notional add back. Whether this judgment will provide more confusion or clarity remains to be seen. Parties should always be aware the Court may hold them responsible for the unilateral dissipation of assets. Given the current uncertain landscape of the law in this area, it is advisable that if there is a risk that a party will devalue the asset pool through a premature distribution or wastage, then it is strongly recommended that you seek legal advice promptly. ■ Framy Anne Browne is a partner at WA law firm Lavan Legal.

Most noteworthy was the Full Court’s response at paragraph 138 and 139 of the judgment regarding the challenged add back: There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 – is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered. The decisions referred to seek to remind the Court, that proper consideration must be given to existing interests in property, and secondly the question posed by s 79(2) as a separate inquiry from any

Recent case confirms possible combined approach

Nevertheless the profession seemed to be coming to grips with this approach until the recent case of Vass & Vass (2015) FamCAFC 51 which addressed this issue from a new angle. In this matter, the husband appealed against the 65 per cent to 35 per cent adjustment of the matrimonial asset pool in the wife’s favour at first instance judgment. One of his grounds of appeal was that the Trial Judge erred in notionally adding back $75,000 to the husband; $50,000 of the add back was monies the husband paid to his parents following separation, which he claimed was repayment of a loan he owed them. The Full Court found the add back was warranted in this situation where the transfer of monies was not deemed to be a legitimate loan repayment but rather a dissipation of the current matrimonial assets.

Reference: 1. Vass & Vass [2015] FamCAFC 51.

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